Some Steamboat City Council members question recent use of confidential memos from city staff

Steamboat Springs  The Steamboat Springs City Council next week could decide whether it wants to continue getting some confidential communications from city staff that are labeled as "work product" and shielded from public review.

Council's decision will come during a broader discussion about government transparency, how often council members want to use executive sessions and how they want to communicate with city staff.

The issue of work product came up Tuesday night when council members Scott Ford and Sonja Macys expressed concern about city staff's recent use of it on two occasions this year to protect two memos Ford and other council members considered to be “mundane.”

Labeling communications as work product is a way of keeping communications city staff send to the council privileged and allows staff to be more candid in those communications.

Colorado's open records law allows the use of work product to shield documents, but only under limited circumstances.

For example, while it protects the draft of a report that is being sent to council early to help aid in the deliberative process, the final version of that same report could not be withheld as work product.

When work product is sent to the council, it can't be released to the public unless a majority of council members decide it should be.

“It limits our ability to have open conversations with our constituency,” Ford said about the use of work product.

City Manager Deb Hinsvark said it was being used recently as a way to keep the council better informed about city projects that are preliminary.

Her decision to use it came after council members at some recent meetings asked that she keep them better informed about ongoing projects ranging from the possibility of paid parking to the construction of a new police station.

“More recently, we've been asked to be more upfront with you,” Hinsvark said. “My colleagues in this business in the state of Colorado use this work product communication very much just to keep their councils informed on issues that are not something we want or need to make public that are very preliminary.”

According to council members, its use has been rare or nonexistent in recent years, including under Hinsvark.

Until it was used last month, council members hadn't reported its use since 2012, when it drew strong criticism from former council member Cari Hermacinski.

She called its use “far more insidious than the use of executive session.”

A few other council members at the time also expressed a desire to limit its use, but a vote on the issue never was taken.

Hinsvark said Tuesday that because a vote hadn't been taken, she didn't think the council had given city staff any clear direction on the issue.

Hinsvark was interim city manager at the time and said city staff would not “use (work product) until they've discussed it with me and I've discussed it with” city attorney Tony Lettunich.

Ford questioned whether that had happened in the most recent uses of work product.

Its most recent use was met with a mix of reactions from the council, with some more accepting of it than others.

Council member Walter Magill said he understood why it was starting to be used, but he didn't prefer it as a way to increase communication with the council.

“People don't like to get something and then be told, 'Don't tell anyone,'” Magill said.

He said he would be more open to holding executive sessions instead to discuss city issues, “be it employees or land issues or a civil issue the city may be involved in.”

New council member Tony Connell said he “was not against getting work product as long as it's unbiased and it's setting the stage for my decision.”

Macys made a motion to restrict its use, but a majority of the council instead supported discussing it further during a council retreat Tuesday.

“I think this falls under the much broader and much more important concept of what we want out of our city manager, and I think and hope that's something we go down the road on next Tuesday,” council member Kenny Reisman said.

Reisman said he thought the council had created a “no-win” situation for the city manager by not clearly laying out its expectations, including about communication.

Council's discussion about transparency is one of many topics expected to be tackled next week in a goal-setting retreat with Todd Musselman.

The retreat, which starts at 4 p.m. in Centennial Hall, is open to the public.

Comments

A quick read of CORA suggests to me that "work product" is pretty limited Early drafts of reports or legislation counts as work product, but there must be a final version.

Work product does not include: (rest copied from CORA)

(A) Comparisons of existing laws, ordinances, rules, or regulations with the provisions
of any bill, amendment, or proposed law, ordinance, rule, or regulation; comparisons of
any bills, amendments, or proposed laws, ordinances, rules, or regulations with other
bills, amendments, or proposed laws, ordinances, rules, or regulations; comparisons of
different versions of bills, amendments, or proposed laws, ordinances, rules, or
regulations; and comparisons of the laws, ordinances, rules, or regulations of the
jurisdiction of the elected official with the laws, ordinances, rules, or regulations of other
jurisdictions;

(B) Compilations of existing public information, statistics, or data;

(C) Compilations or explanations of general areas or bodies of law, ordinances, rules, or
regulations, legislative history, or legislative policy.

Thus, if the :"work product" seems mundane then it would seem to include information not requiring confidentiality. The annotated case law states that documents are to have confidential info redacted and release the public information. Therefore, Scott Ford or any concerned city council members could submit a CORA request for the "work product" and expect for a redacted version to be released.

So, for instance, the paid parking "work product" could have been requested via CORA and the city could have kept secret any plans for paid parking, but would have to release the portion that had any statistics on paid parking and so on.

Likewise, the city's plan of a land swap with the hospital for the foreclosed parcel would be confidential, but the fact that city was foreclosing on a lot in the Barn Village and so on was public information.

I would also suggest that city council adopt of policy that either work product is important and should be discussed in executive session, or is mundane and should be released to the public.

This is not the first time City Council has addressed the issue associated with marking communications to City Council as Work Product. Former City Council member Cari Hermacinski, characterized the use of Work Product as, “far more insidious than the use of executive session.”
Although this statement has been said in many different ways by many different people it still applies, “Those that forget the past or simply ignore it, are doomed to repeat it.”
Prior City Councils have made a commitment to transparency. This commitment must go beyond a simple agreement that it is a good idea – the actions of City Council and that of City staff must demonstrate and serve as evidence to that commitment. I simply do not care what transparency and open government (or lack of) practices are followed in other towns/cities. This is our town.
For those that are interested to see what took place in the past one can view the City Council video from the 12/4/2012 where a commitment to open and transparency government was made. The portion of interest starts at 1:27:30 to 1:47:00.http://docs.steamboatsprings.net/sirepub/meetresults.aspx?view=&supertype=&startdate=12/4/2012&enddate=12/4/2012&MeetType=Regular%20Meeting
As one can clearly see in the video a commitment was made that communication marked Work Product would not be released by staff without first having it reviewed by the City Attorney agreed that it was appropriated to be marked as such. In the two items referenced in my council report this did not happen or it was very “muddy”.
This is an accountability issue. Folks in this City government (elected or hired) must do what they say they are going to do. This does not seem unreasonable to me.
(Although I am a member of City Council, I want to stress that the views expressed in this posting are my own and may or may not be shared by other members of City Council or staff.)

I agree that secretive work product memos run counter to the concept of public government.

If a majority of the city council lacks the commitment to open and public government then all is not lost. Particularly since the work product memos were not reviewed by the city attorney, it is highly likely to include public information and thus can be released after the confidential portions have been redacted.

I don't know if a city council member is given the privilege of being allowed to ask the city attorney to review a work product memo and ask for a redacted version to be released. That would seem to be the easiest path and to be a fair corrective measure considering the city staff had agreed to send work products to the city attorney for legal review prior to being given to the city council.

I have submitted CORA requests in the past to this city government and had them rejected. I could have taken the city to court, but that is a tough road when I didn't know what was in the documents and whether they actually contained anything that should have been released.

But the city council members have seen the originals and if any of them were to submit an open records request that is denied then they can provide an affidavit to the court that there are portions that do include info that cannot legally kept secret and thus ask the court to order the release of a redacted version.

And here is a simple solution to solve what apologists such as Kenny Reisman says is a "no-win" situation.

RELEASE IT! Name any scenario in which city staff considering parking meters gains anything by not being released to the public. Why would it make any difference if the city government had said there was just a mere thought that staff should research the concept of metered parking?

RELEASE IT! How would it have made any difference for city to say they are expecting to get possession of a Barn Village parcel through foreclosure and were thinking of seeing if it could be used to swap for a site for the police station. Maybe some other owner of a long time vacant commercial lot say they'd like to trade for a multi-family lot and give the city better options. There would be more benefit from releasing it than from keeping it secret.

New council member Tony Connell said he “was not against getting work product as long as it's unbiased and it's setting the stage for my decision.”

Well, if that statement is true then CORA is explicit that the work product has to be released! A primary principle of CORA is that public decisions are the result of a public process. Thus, decisions cannot be based upon secret communications from city staff.

(IV) Any materials that would otherwise constitute work product if such materials are
produced and distributed to the members of a public body for their use or consideration
in a public meeting ...

So the situation of "work product" which Tony Connell cites as being useful is not legal. From other open meetings cases, it would appear that if Tony Connell or any other city council members were to admit that work products were part of their decision making process then that decision is not legal. Just like they cannot pass an ordinance in executive session, they cannot use secret materials when making a decision.

It is this whole philosophy that government can be run in secret with decisions being made with secret information that inspired CORA and COML to be passed in the first place. That if information is good enough to be given to elected officials then it is good enough to be given to the public except in rare situation

This is not to pick on Tony Connell, but to show that the use of "work product" is not a simple way to get around CORA and COML of open records and open meetings with open information.

I note that Cari started off describing her concerns about work product regarding an email from Hinsvark mentioning talking points to use when talking to the public about the sale to BAP.

The discussion went to the city council can vote to release something labelled "work product". And whether one city council member could unilaterally release something labelled work product.

Cari then says that CORA requires that city needs to be state that nonpublic information needs to be certified as causing "substantial harm" if released to the public.

And then the discussion went to City Attorney discussing attorney client privilege falls under "work product".

And then Hinsvark promised not to use it without consulting with city attorney.

But it seems to me that the essential legal issue was neglected in that conversation. That "work product" has a narrow definition and cannot be used by city staff in conjunction with most of the city council to secretly exchange information.

Seems clear to me that "work product" is defined in the law to not put an undue burden on government to track and publicly release every draft of a report. But CORA does explicitly state that if work product is used when making a decision then it must be released.

But that "work product" can easily be used by city staff and welcomed by a compliant city council as a means of secretly passing information. As Cari noted, it is more insidious than executive sessions because at least the public is aware that the city council is holding secret meetings. I would also note that city council must certify that they entered executive session for a valid reason and only discussed that topic. So it should not be possible in an executive session for Hinsvark to tell city council of recommended talking points of selling the current police station to BAP.

So calling something work product is not only more insidious than executive sessions, it is being used as a secret channel to communicate to city council info that could not be passed them in any other way without being public info.

Seems to me that there is every reason to believe that a majority of the city council will continue to enjoy receiving secret info. That Scott Ford and Sonja Macys should brush up on CORA and work to get anything improperly labelled as "work product" released to the public.